Case 3:22-cv-00415-SVN Document 1 Filed 03/21/22 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`TIMOTHY LONDREGAN;
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`MARKER SEVEN MARINA, LLC
`NIANTIC BAY SHELLFISH FARM, LLC
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`Plaintiffs,
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`TOWN OF EAST LYME;
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`MARK NICKERSON;
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`WILLIAM MULHOLLAND
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`Defendants
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`Civil Action No.:
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`MARCH 21, 2022
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`COMPLAINT AND JURY DEMAND
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`The Plaintiffs, Timothy Londregan, Marker Seven Marina, LLC, and Niantic Bay Shellfish
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`Farm, LLC (hereinafter sometimes referred to collectively as Londregan), as and for their
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`Complaint against the Defendants, Town of East Lyme, Mark Nickerson, in his official capacity,
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`and William Mulholland, in his official capacity, (hereinafter sometimes referred to as “Town”)
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`allege as follows:
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`NATURE OF THE PROCEEDINGS
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`1.
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`This is an action under 42 U.S.C. § 1983 for damages and other relief concerning
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`the depravation of Londregan’s rights under 42 U.S.C. § 1981 and the Equal Protection Clause of
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`the Constitution of the United States and through the acts of the “Town” and its Officers and their
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`treatment of Londregan as a “class of one” and in their selective enforcement of zoning regulations.
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`2.
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`Timothy Londregan (“Londregan”) is a natural person and permanently resides at
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`59 Woodlawn Road in New London, Connecticut.
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`3.
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`Marker Severn Marina, LLC (“MSM”) is a Connecticut limited liability company
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`whose sole member is Timothy Londregan and whose principal place of business is 111 Main
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`Street, Niantic, East Lyme, CT 06357.
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`4.
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`Niantic Bay Shellfish Farm, LLC (“NBSF”) is a Connecticut limited liability
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`company whose sole member is Timothy Londregan and whose principal place of business is 111
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`Main Street, Niantic, East Lyme, CT 06357.
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`5.
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`The Town of East Lyme is a municipality organized under the laws of the State of
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`Connecticut. Niantic is a village and census designated place within and part of the Town of East
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`Lyme.
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`6.
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`Mark Nickerson, at all times represented herein, was the First Selectman of the
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`Town of East Lyme and was acting in his official capacity.
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`7.
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`William Mulholland, at all time represented herein, was the Zoning Enforcement
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`Officer of the Town and was acting in his official capacity.
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`JURISDICTION AND VENUE
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`8.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1331 and 1334 as this action involves questions arising under the Constitution and laws of the
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`United States and is brought to redress the deprivation, under the color of State law, of the
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`Londregan rights as citizens of the United States.
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`9.
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`This Court has personal jurisdiction over Town of East Lyme as it is a municipality
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`located within the State of Connecticut.
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`10.
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`Venue is proper in this district pursuant to 28 U.S.C. § 1391 (b) and (c) because
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`Londregan resides in this district and the events, omissions, and property giving rise to the
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`Londregan’s claims occurred in this district.
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`Background
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`FACTUAL ALLEGATIONS
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`11.
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`Niantic consists of the southeastern corner of the Town. The southern edge of
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`Niantic borders Niantic Bay, which opens into Long Island Sound. The land border of Niantic
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`Bay begins on its western side at the tip of a peninsula (named “Black Point”), runs northward and
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`eastward to a jetty (named “The Bar”) at the southernmost point of the Niantic River that continues
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`along a bridge crossing a navigable channel between Niantic Bay and Niantic River, and continues
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`along the most southwestern edge of Waterford. Niantic River is an estuary running northward
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`between the Town and Waterford, with the border of each extending approximately to the middle
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`of the Niantic River.
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`12.
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`Due to its unique environmental conditions, Niantic has a national reputation for
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`producing some of the best shellfish for consumption, and has a long history of both recreational
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`and commercial shellfishery.
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`13.
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`Londregan, 31 years old, has long been involved in the Niantic shell fishing
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`community. In 2013, he decided to begin an aquaculture operation in the waters off of Niantic to
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`farm and harvest shellfish such as oysters, mussels, clams, and scallops. For three years,
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`Londregan researched farming methods, developed his own techniques, acquired equipment, and
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`scouted farming locations. At the same time, he also researched and applied for the various
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`requisite permits and approvals needed while searching for a base of operations.
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`14.
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`Through all times described in this Complaint, NBSF aquaculture operations have
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`utilized oysterbeds in Niantic Bay, south of the Bar and open to Long Island Sound.
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`15.
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`In July of 2016, NBSF began utilizing piles under a private lease in certain waters
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`in the Niantic River to berth its “Shell-Plex” vessel.
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`16.
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`The Shell-Plex vessel is a platform boat that houses equipment to lift shellfish cages
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`from the ocean floor and “tumble” the shellfish (which promotes growth).
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`17.
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`After the Shell-Plex was moved to the piles, various private parties began to raise
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`complaints against NBSF.
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` Nonetheless, the Connecticut Department of Energy and
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`Environmental Protection—the public agency tasked with regulating Connecticut’s waterways—
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`confirmed with Londregan that these complaints were non-issues and that NBSF was acting within
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`its rights.
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`18.
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`NBSF then applied for a new lease in the Niantic River. In response, the private
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`parties escalated their efforts against NBSF, forming the “Niantic River Advocacy Coalition”
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`(“NRAC”). NRAC consisted of various local land owners, including some with properties being
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`held for future development.
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`19.
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`NRAC engaged in a media blitz against NBSF, hiring a public relations firm and
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`lawyers, starting websites, distributing pamphlets, and vocally attending town meetings.
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`20.
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`Upon information and belief, the Town and the Town of Waterford held private
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`meetings with marina owners on several occasions concerning NBSF’s lease. One such marina
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`was Boats Inc. Notably, Boats Inc. has several interests in the Niantic area and generally operates
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`its marinas with a focus for higher-end recreational boaters.
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`21.
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`Ultimately, after considerable delay, the Town and the Town of Waterford denied
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`NBSF’s application for a new lease in the Niantic River.
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`22.
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`On or about March 2, 2018, the piles in the Niantic River, where NBSF berthed and
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`operated the Shell-Plex, broke. Rather than repair them, Waterford Harbor Management
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`Commission illegally removed the piles.
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`23.
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`Consequently, NBSF relocated its operations to 109-111 Main Street in Niantic,
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`known as Marker Seven Marina (“Property”), through a sublease space from the then
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`tenant/operator of the marina, Marker Seven Marina & Tackle Shop, LLC. Marker Seven Marina
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`is located at the southern edge of the Niantic River, at the southwestern interior corner of the shore
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`of the Niantic River and “The Bar.”
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`24.
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`NBSF docked the Shell-Plex at a boat slip on the southeastern side of the main dock
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`on the Property.
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`25.
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`Upon relocation, NBSF would occasionally operate the Shell-Plex’s tumbler at its
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`slip.
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`26.
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`Boats Inc. operates a neighboring marina to the north of the Property (“Boats Inc.
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`Marina”). The Boats Inc. Marina is operated to serve seasonal, luxury, recreational boaters. It has
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`no commercial tenants.
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`27.
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`The docks at the Property and the docks at the Boats Inc. Marina extend roughly
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`parallel with each other into the Niantic River. The closest points between the docks are
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`approximately 167 feet apart.
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`28.
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`NBSF moved its Shell-Plex vessel from the main do to the most southeastern dock
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`on its property, increasing the distance between the Shell-Plex and Boat’s Inc.’s marina to
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`approximately 335 feet.
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`29.
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`In 2019, Londregan agreed to take over the remaining two years of lease of the
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`Property. Londregan formed Marker Seven Marina, LLC, which accepted an assignment of the
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`lease from Marker Seven Marina & Tackle Shop, LLC.
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`The Town Interferes with Plaintiffs’ Shellfishing Operation
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`30.
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`All of NBSF’s shellfishing work described in this Complaint has been done with
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`required permits and approvals from the Connecticut Department of Energy and Environmental
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`Protection (“DEEP”).
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`31.
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`Despite NBSF moving the Shell-Plex to the Property, the Town’s interference,
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`largely at the behest of competing marina owners (including Boats Inc.), would soon escalate.
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`32.
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`On Mary 7, 2019, 14 months after relocating the Shell-Plex at the Property, and
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`despite no complaints, Nickerson emailed Londregan and claimed that there were zoning
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`violations and threatened a cease-and-desist order over NBSF’s use of the Shell-Plex’s tumbler at
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`its slip at the marina. The basis of the threat was a “noise complaint” purportedly arising from the
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`sound of oysters impacting inside the tumbler.
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`33.
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`The noise impacts of the tumbler in operation is minimal. At the neighboring
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`marina, it is approximately equivalent of someone washing their boat.
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`34.
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`In any event, while the noise impacts do not violate the Town’s noise ordinances,
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`the activity—as the tumbler is part of a farming activity—is exempt from the Town’s noise
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`ordinances.
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`35.
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`Upon information and belief, this noise complaint came from Boats Inc. and its
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`desire to fashion its marina and neighboring marinas for its luxury boating customers.
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`36.
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`Londregan had a meeting with the Nickerson and Mulholland concerning the
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`threatened cease and desist. Nickerson and Mulholland accused Londregan of “processing” by
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`using his tumbler on the uplands. Londregan replied that he was waterward and not on the uplands.
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`Nickerson replied that “the noise is too loud and the people with the one-half million dollar boats
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`that come down on weekends do not want it.”
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`37.
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`After the meeting, Londregan had a phone call with Nickerson during which
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`Nickerson stated that if Londregan moved Plaintiffs’ operations to the commercial docks at Cini
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`Memorial Park then all the problems would go away.
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`38.
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`39.
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`Cini Memorial Park is in the same zoning district as the Property.
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`Nickerson also stated during that phone call that other marinas’ clients did not want
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`Plaintiffs being so close to their yachts.
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`40.
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`Upon information and belief, this statement was not just in reference to the Shell-
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`Plex noise, or even just Plaintiffs’ shellfishing operations, but also the broader fact that the
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`Property was a working class marina in contrast to the luxury-recreational focus of the marina
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`being operated by Boats Inc. and others.
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`41.
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`On October 7, 2019, the Town issued a cease-and-desist order against Marker 7 and
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`NBSF concerning the purported violations of the Town’s Zoning Regulations (“Regulations”).
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`Specifically, the Town claimed the CM Commercial District Zone the Property did not allow for
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`Plaintiff’s activities.
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`42.
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`The Town’s purported interpretation of its Regulations is incorrect and contrived:
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`a. Section 10.1.2 allows for “marinas; yacht clubs” in a CM District. The Town
`has taken the position in its action against Plaintiffs, and only in this action,
`that “marinas” are limited to recreational and pleasure vessels.
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`b. Section 10.1.9 allows for “[b]erthing facilities for vessels engaged in
`commercial fishery or shellfishery, but expressly excluding fish or shellfish
`processing plants.” The Town has taken the position that Plaintiffs’ activities
`fall within the exclusion. The exclusion, however, is an exclusion for the type
`of “facilities,” not the type of “vessel.” There is no “facility: at issue—rather,
`the Town is only taking issue with Plaintiffs’ vessel, the Shell-Plex. The
`Town’s interpretation also is inconsistent with the meaning of the word “plant,”
`which under common understanding is a building and the equipment therein.
`In any event, the Shell-Plex is not a “processing plant.” In the commercial
`context, processing plant denotes processing a material so it is ready for final
`consumption or use. Here, the tumbler on the Shell-Plex simply flips oysters
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`over before redepositing them in the water to continue growing for months to
`years.
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`c. The Town suggested Plaintiffs could do the same activity in Cini Park, which
`is in the same CM Commercial District Zone as the Property.
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`43.
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`Plaintiffs appealed the cease-and-desist order to the Town’s Zoning Board of
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`Appeals and then to the Connecticut Superior Court, where the appeal is still pending.
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`44.
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`At the time the cease-and-desist order was issued and prosecuted by the Town,
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`Plaintiffs were attempting to renegotiate and extend the lease of the Property.
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`45.
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`Also at this time, Boats Inc. was trying to negotiate the purchase/lease of the
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`Property.
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`46.
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`Furthermore, NRAC was continuing to wage media campaigns and install friendly
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`members on various commissions specifically to interfere with Plaintiffs. One such member was
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`Don McKenzie, the owner of Boats Inc., who took a position on the Town’s Shellfish Commission.
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`47.
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`Once McKenzie was on the Shellfish Commission, the Commission doubled
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`NBSF’s rent for its aquaculture areas in the Niantic Bay.
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`48.
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`Subsequently, the Commission has also failed to renew the lease for those areas,
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`which expired on December 31, 2020.
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`The Town Interferes with Routine and Permitted Dredging
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`49.
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`50.
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`In 2021, MSM began a project to rebuild a seawall at the Property.
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`All of this dredging and repair work was performed with required permits and
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`approvals from DEEP.
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`51.
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`On May 10, 2021, the Town of East Lyme commenced an injunction action against
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`Timothy Londregan and MSM concerning this work. The Town claimed that Londregan and
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`MSM were violating Section 14 of the Regulations, which according to the Town require the filing
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`of a coastal area site plan for the dredging and repair work. Accordingly, the Town requested
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`orders for immediate cessation of all work and that the Plaintiffs be required to submit a coastal
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`area management site plan to the Town activities.
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`52.
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`Other residents and business owners in the Town of East Lyme have performed
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`essentially identical work with the knowledge of the Town and without the need to apply for any
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`permit from any land use agency or to submit a coastal area management site plan for the activities
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`of dredging, the relocation and or reconstruction of a seawall or bulkhead, backfilling behind the
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`new seawall or bulkhead, the staging of materials, equipment, and waste and dredge material
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`related to the work, and conducting said work from land on the subject property; other similarly
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`property owners were not subject to an injunction action as in the present case.
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`53.
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`Furthermore, upon information and belief, this is the first time the Town has
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`requested a property owner with a Certificate of Permission from DEEP for dredging, dewatering,
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`and de minimis changes to bulkhead and dock facilities to also obtain a Coastal Area Management
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`site plan review from its planning and zoning authorities.
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`54.
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`Such similar work has been performed at all or some of the following addresses in
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`the Town of East Lyme:
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`a. 113 Oswegatchie Hill Road, 3 Bells Marina: DEEP approved the installation of
`a bulkhead and the removal of an existing bulkhead. Dredged by mechanical
`means, dewatered the dredged material in an upland dewatering basin, and
`spread the dewatering materials on the uplands. Permission was also granted to
`add new docks. The Town of East Lyme took no zoning review. The Town of
`East Lyme took no coastal area management review. On April 5, 2019, the
`Town issued a certificate of zoning compliance at the request of the attorney
`for the property owner, whilst dredge materials were still readily visible on the
`premise.
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`b. 8 Shore Road, Niantic Bay Yacht Club: DEEP issued a tentative determination
`to approve an application for a permit to dredge approximately 6,300 cubic
`yards of material. The permit involved the dredging and removal of materials
`as in the instant case. On April 6, 2021 the Town of East Lyme sent a letter to
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`the Niantic Bay Yacht Club indicating that this activity required permitting by
`the Towns zoning commission, and compliance with the Town’s regulation
`coastal area management and FEMA regulations. Notwithstanding, this letter
`the Town did not require any applications. No action was taken against the
`Niantic Bay Yacht Club. The Town did not require any application for
`compliance with the Towns zoning regulations. The Town did not require an
`application for compliance with the Town coastal area management regulations.
`The Town did not require an application for compliance with the FEMA
`regulations.
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`c. 109-111 Main Street East Lyme: DEEP issued a license to the applicant on
`November 1, 2019 to remove a platform ramp and floating dock and to install
`a 300-foot linear feet of timber bulkhead, to remove an existing deteriorated
`bulkhead and to remove existing debris along the eastern shoreline, and to
`conduct dredging and allowing the dredged material to be dewatered on the
`upland, and to spread the dewatered dredged material on the onside upland
`parking area. The applicant completed this work. The Town required no coastal
`area management review for any of this work which is substantially similar to
`the work under the facts of this case. The Town received the same notice from
`DEEP as was given for the applicant in this case.
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`d. 25 Smith Avenue, Dockominium: DEEP issued a permit to dredge and place
`the dredged material in a dewatering basin and to mechanically spread the
`dewatered dredged material onsite in the uplands parking area. The Town of
`East Lyme required no CAM application for such activity. The Town received
`the same notice From DEEP as was given for the applicant in this case.
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`e. Upon information and belief, work performed in relation to DEEP Certificates
`of Permission 2006-033-MG, 2010-06176-MG, 2006-00029-WQC & FCC,
`none of which had coastal area site plans on file with the Town.
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`55.
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`Defendants’ actions in regards to the cease-and-desist order and injunction were
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`not good faith efforts to enforce its Regulations but rather have been motivated by a desire to
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`interfere with and harm Plaintiff’s commercial relationships and activities for the benefit of
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`competing marina owners and neighbors who did not want Plaintiffs’ business to continue despite
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`being permitted under all applicable law.
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`56.
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`Defendants’ actions were motivated by ill will, personal animus, and malice
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`towards Londregan.
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`57.
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`Defendants have intentionally treated Plaintiffs differently than other similarly-
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`situated residents and businesses.
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`58.
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`59.
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`Defendants’ actions have been under the color of state law.
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`Defendants’ actions have proximately caused Plaintiffs to suffer the deprivation of
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`federally protected property and due process rights and damages.
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`60.
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`Defendants’ actions have proximately caused Plaintiffs damages.
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`PRAYER FOR RELIEF
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`WHEREFORE, Londregan prays that the Court award the following relief:
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`Compensatory, special and general damages;
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`Injunctive relief barring the Town from further acts and violation of Londregan’s
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`Attorney’s fees pursuant to 42 U.S.C. § 1988;
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`Costs and expenses, if any, to which Londregan may be entitled by statute or court
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`rights;
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`1.
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`2.
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`3.
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`4.
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`rule; and
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`5.
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`Such other legal or equitable relief as the Court deems just and proper.
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`JURY DEMAND
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`Plaintiffs demand a trial by jury of all issues so triable pursuant to Rule 38 of the Federal
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`Rules of Civil Procedure.
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`PLAINTIFFS,
`TIMOTHY LONDREGAN,
`MARKER SEVEN MARINA, LLC, and
`NIANTIC BAY SHELLFISH FARM, LLC
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`By: /s/ Peter J. Zarella
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`Peter J. Zarella (ct29657)
`McElroy, Deutsch, Mulvaney & Carpenter, LLP
`One State Street - 14th Floor
`Hartford, CT 06103
`Tel.: 860.241.2688
`Fax: 860.522.2796
` Email: pzarella@mdmc-law.com
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